Santa Clara County, Cal. v. Hughes

• Decision Date: 06 July 1964
• Citation: 43 Misc.2d 559,251 N.Y.S.2d 579
• Parties: COUNTY OF SANTA CLARA, State of CALIFORNIA, Dolly Claretta Hughes, Petitioners, v. David Edward HUGHES, Respondent.
• Court: New York Family Court

Page 579

251 N.Y.S.2d 579

43 Misc.2d 559

COUNTY OF SANTA CLARA, State of CALIFORNIA, Dolly Claretta Hughes, Petitioners, v. David Edward HUGHES, Respondent.

Family Court, Ulster County, New York.

July 6, 1964.

Sherwood E. Davis, Asst. County Atty., for petitioners.

Francis Martocci, Kingston, for respondent.

HUGH ROSS ELWYN, Justice.

In this proceeding, initiated in the State of California under the Uniform Reciprocal Enforcement of Support Act of California (California Code of Civil Procedure, Title 10a, Part 3, Sects. 1650-1690), the petitioner, the County of Santa Clara, seeks a judgment against respondent ordering him to pay the sum of $3,256.00 as reimbursement for expenditures for the support of the respondent's dependents, and the petitioner, Dolly Claretta Hughes, asks that the respondent, styled the defendant in the California proceeding, be ordered to pay the sum of $100 per month for the support of two minor children who are in the wife's custody in the State of California.

At the hearing the respondent controverted the petition and entered a verified denial of those allegations of the petition, wherein it was alleged that the dependents named in the petition were entitled to support from the defendant, and that since about September 25, 1962 he had failed to provide fair and reasonable support for his dependents according to his means and earning capacity. In addition, the respondent pleaded a number of defenses which require some discussion.

Thereupon, the Court, in accordance with the provisions of section 37, subd. 6 of the Domestic Relations Law, stayed all proceedings and a transcript of the clerk's minutes showing the denials were transmitted to the Court in the initiating state for the taking of the petitioner's testimony. From this testimony, which has been forwarded to this Court, it appears that the parties were married in the City of Kingston, New York on January 6, 1958. Following the birth of two children, the wife left the husband and removed with the two children to the State of California. Thereafter, and on October 15, 1963, the wife procured in the Courts of the State of California a decree of divorce on the grounds of extreme cruelty and was awarded custody of the children without, however, obtaining any provision for the support of either herself or the children. The mother has since remarried and is now living with her present husband in California.

In justification for his failure to provide support for his two children, the respondent has pleaded the following facts which are supported by his testimony. It appears that prior to May 7, 1960 the respondent and his wife and two children, age 2 and six months, resided in the City of Kington, New York. Prior to the parties' marriage, the petitioner had resided with a family by the name of Buttle, who were of the Mormon faith. Mr. Buttle and his wife objected to the petitioner's marriage and tried to discourage it, but to no avail. In spite of the objections of the Buttle family, the petitioner and the respondent were married and two children were born of the marriage.

After the marriage, Mr. Buttle and other Mormon church officials constantly pressed their influence on the couple and in various ways attempted to induce the respondent and his wife to follow Mormon ways and to become members of the Mormon church. In spite of the respondent's disinterest in Mormonism, which he made plain to Mr. Buttle, the latter, along with other officials of the Mormon church, would frequently visit at the respondent's home where they would show movies and slides on Mormonism for the purpose of proselytizing the respondent and his family. Finally, the persistent efforts of Mr. Buttle and his friends to convert the respondent and his wife to the Mormon faith became so offensive to the respondent that he forbade Buttle and his friends to visit his home anymore.

Shortly afterward, on the 7th of May 1960, the respondent went to work as usual, but when he returned home that evening, he found that his home had been emptied of all its furniture and furnishings, and his wife and children were gone. To all intents and purposes, his wife and children had vanished without a trace, for although the respondent made diligent efforts to locate his wife and children through the police, various state and local officials and his own attorneys, he was unable for many months to learn their whereabouts, and he has never seen nor heard from his wife and children since their sudden and mysterious disappearance over four years ago. Only after many months of diligent inquiry and investigation did the respondent learn that his wife and children, in company with Mr. Buttle and other persons of the Mormon faith, had removed to San Jose, California, whence Mr. Buttle had been transferred by his company. The actions and conduct of his wife in willfully and deliberately depriving him of his natural rights as a parent is, the respondent contends, contrary to the public policy of the State of New York and, consequently, her petition for support of the children, which she removed the breadth of the continent, should not be entertained.

Thus, there is squarely presented the question, whether the wife's abandonment of her home and marriage, with no apparent justifiable excuse, and the surreptitious removal of her two infant children to a distant state without the husband's knowledge or consent, absolves the husband from the obligation which the law places upon him as a father to support his minor children.

That the respondent has been unfairly, not to say shabbily, dealt with by the wife, there can be no doubt. For a long time he had no knowledge at all of his children's whereabouts and all his efforts to locate them proved fruitless. His fears and anxiety for their safety may be readily imagined. The wife's heartless treatment of the husband by not only abandoning him, but in spiriting away his children, and then keeping their whereabouts a complete secret to the extent that to this day there has been no communication by the wife with the husband concerning the children or their welfare, can be neither justified nor condoned. If the wife were seeking support for herself, there would be no question that by her abandonment of her husband she has forfeited all right to his support. Further, having obtained a divorce in the California courts, she would be estopped under the doctrine of Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290; see also Ross v. Ross, 206 Misc. 1073, 136 N.Y.S.2d 23. The question is, however, whether a wife by any conduct on her part, even though it result, for all practical purposes, in a total deprivation of the husband's parental rights, can forfeit her children's legal right to support from their father.

Although the Court feels a great sympathy for a father, who through no fault of his own, has been shorn of the rights and joys of parenthood, the law seems to be well-established (1) that 'a husband [is] absolutely responsible in keeping with his ability for the support of his dependent minor child or children' (Landes v. Landes, 1 N.Y.2d 358, 365, 153 N.Y.S.2d 14, 19, 135 N.E.2d 562, 566; Social Welfare Law, § 101, Family Court Act, § 413); (2) 'that neither a divorce or a remarriage, nor the fact that the mother has legal custody of the child or children, terminates that liability' (Landes v. Landes, supra, 1 N.Y.2d 365, 153 N.Y.S.2d 19, 135 N.E.2d 566, citing Laumeier v. Laumeier, 237 N.Y. 357, 364, 143 N.E. 219, 221, 32 A.L.R . 654) and (3) that 'this may be enforced regardless of residence' (Landes v. Landes, supra 1 N.Y.2d 365, 153 N.Y.S.2d 19, 135 N.E.2d 566, citing Adams v. Adams, 272 App.Div. 29, 30, 68 N.Y.S.2d 294; Domestic Relations Law, § 34 Subd. 1).

Moreover, '[t]he duty to support and the right to custody are not coextensive, nor does the obligation of the one necessarily depend upon the enforcement of the other' Aberlin v. Aberlin, 3 A.D.2d 417, 421, 161 N.Y.S.2d 305, 309. In 'Almandares' v. 'Almandares', 186 Misc. 667, 60 N.Y.S.2d 164 as in this case, a mother and child had suddenly disappeared and the respondent had no knowledge of their whereabouts until he received notice of an order of publication in a divorce which the mother had instituted in the State of Florida. The Court reasoned that it would be inconsistent with the analogous principles that a minor child is not bound by a sister state constructive service default divorce procured by its parent, nor by the financial provisions of a foreign divorce decree to penalize the child for the acts of the mother, especially since her removal was not in violation of any court mandate and concluded by saying: 'In any event, the weight of authority is that when the custodian has a bona fide reason for removing the child to another State and that course is consistent with the child's welfare, such removal will be permitted, and not constitute an excuse for withholding support, notwithstanding that it makes more difficult the father's visitation. Altschuler v. Altschuler, supra, 248 App.Div. 768, 289 N.Y.S. 59, supra; Nash v. Nash, supra, 236 App.Div . 89, 258 N.Y.S. 313, affd. 261 N.Y. 579, 185 N.E. 746, supra; Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22 [Note], 154 A.L.R. 549 ; Kane v. Kane, 241 Mich. 96, 216 N.W. 437; Zirkle v. Zirkle, 202 Ind. 129, 172 N.E. 192; Schneider v. Schneider, 207 Iowa 189, 222 N.W. 400)'. ('Almandares' v. 'Almandares', supra, 186 Misc. 674, 60 N.Y.S.2d 171.)

The sufficiency of the same defense as the respondent raises here was considered and held to be insufficient in this type of proceeding in the case of Meyers v. Meyers, 29 Misc.2d 163, p. 165, 219 N.Y.S.2d 63, p. 65 where the court said: 'The mother has no doubt deprived the father of any substantial power of visitation. This, as shown by the cases relied upon by the appellant, might induce the Court to refuse to punish the husband for contempt in failing to comply with an order for...